Blogger Wins 1.5 Year Legal Battle 207
FixYourThinking writes "After nearly one and a half years of harassment from a relentless attorney, it seems that quietly a blogger in South Carolina has won a monumental ruling in favor of bloggers. In a summary judgement requested by the Defendant, Philip Smith was able to obtain a special sanction after the Plaintiff attorney put a 'notice of lien' (called lis pendens) on Smith's residence. The judge also reprimanded the Plaintiff attorney for abusive deposition and court procedure. The case set forth the following; 'It's not the format; it's the content and intention that make text journalism / reporting.'"
1.5 years for a court case isn't that bad (Score:5, Informative)
It took me 10 months to get a traffic ticket dismissed last year. Exxon's managed to dodge justice after it's Alaskan f-up for 18 years with legal maneuvers.
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Re:1.5 years for a court case isn't that bad (Score:4, Funny)
Re:1.5 years for a court case isn't that bad (Score:5, Insightful)
It's a right the incriminated must invoke.
Speedy trials (Score:4, Informative)
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Grammar Police - Notice of Ticket: I'm Sorry Sir, but use of the possessive pronoun "its" does not require an apostrophe. Your use of the contraction "it's" is improper and is normally restricted to situations where it shortens the common two word phrase "it is". Your blog is classified as improper usage by the Grammar Police Authority.
Show up at your local Grammar Police office within the next 30 days to be booked for your infraction. Fail to do so and your every letter will be audited for punctua
I just wish (Score:3, Interesting)
Re:I just wish (Score:5, Insightful)
Re:I just wish (Score:5, Funny)
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No, that's referred to by the phrase "scared shitless".
Spelling joke. Can't resist. (Score:2)
What's so special about that press card? (Score:5, Insightful)
Re:What's so special about that press card? (Score:5, Insightful)
Re:What's so special about that press card? (Score:5, Insightful)
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...the "don't tase me bro" guy is just as valid of an opinion as...
You can say that he has the right to speak, sure, but that's not the same thing. Frankly, he's a damned looney nutter, and so no, his opinion is not valid. In my own opinion, of course.
What do you define as "press protection" anyway? Why should he get such treatment? Because he has an opinion? That's no good, everybody has an opinion. No, press protection generally is, in fact, a matter of numbers. If somebody has enough people listening to them, then they have more of a right to speak (actually, more of
Re:What's so special about that press card? (Score:5, Insightful)
What do you define as "press protection" anyway? Why should he get such treatment? Because he has an opinion? That's no good, everybody has an opinion. No, press protection generally is, in fact, a matter of numbers. If somebody has enough people listening to them, then they have more of a right to speak (actually, more of a right to NOT speak, since that's what "press protection" generally does) than other people.
Sorry, but that's a simple fact. When more people listen to you, what you say is more important. You can curse the darkness all you like, it's when you talk into the lights that you make a difference.
No one has any "more right to speak" then they have "right to be heard". Minority opinions and minority insights should be afforded the same protection as majority opinions and insights. Rush Limbaugh is not right because 13.5 million Americans listen to him, he is right or wrong based on the content of his speech. I am not wrong simply because only 0-100 people see my post, I am right or wrong based on the content of my text. Affording any less protection is to diminish the nascent "social media" that is set to become part of the mainstream media for the next generation.
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Importance is not dictated by the number of people who listen. Extremely important information and opinions can go unheard. Free speech protection and various rights, privileges, and related laws help ensure opinions are not silenced.
Let's get our Bill of Rights freedom's straight, here. We're talking about freedom of the press, not speech. The press and everyone else is free to speak (or publish that speech) however they like within the constraints that the rest of the constitution explicitly and implicitly imposes, but the fact that we single out freedom of the press means that we value the press as an entity within our society.
What does that mean?
It means that you can't go around telling newspapers and other "press" what they can pr
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Freedom of speech isn't the same as freedom of the press? I agree, and so do the authors of the first amendment, who chose to protect both.
What protections, rights or privileges do you think should be extended to journalists who have press passes and not to journalists who do not?
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And you and others here seem to confuse freedom of the press with freedom of speech. If the founding fathers didn't think there was a difference why then would they provide for both. Also, one is not a subset of the other.
The democratization of media via the internet is blurring the line between the two. Social media. The founding fathers lived in a time when a printing press was very expensive, existed in limited numbers, and distribution of the content was extremely difficult. It's very different today. I am a person who gets more news via the internet then any traditional media and our numbers have grown. Thus to me Micheal Giest is the same as Andy Greenberg of forbes. Today any person with a opinion has a chance of get
Re:What's so special about that press card? (Score:5, Interesting)
The "dont tase me bro" guy is an exception and a straw man argument to level in this discussion, although his intent must be proven as non-news and fictional. In retrospect, his incident DID finally inspire me to read the Greg Palast book (Armed Madhouse), so perhaps even the pranksters can have a news worthy purpose.
Do/Did you work in a news org of some sort?
Logistics are not the issue, control of the news flow(not just from a propaganda angle, from a corporate value and advertising revenue viewpoint as well) is the real issue.
Cheers.
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I think this is still a clash of "old world/new world" societies. When working on traditional topics and with more conservative people, those involved tend to favor traditional news sources, and so their bias toward "true journalists" limits them to just corporate professionals. However, with topics and people that themselves have embraced "new world" ideas, the notions of press can be much for flexible.
Consider, fo
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The thing is, the market for owning a press recently crashed, and some of these guys who paid a whole lot for theirs are pissed off about it. They want to claim essentially, that just because they had to pay millions of dollars for their press, that they have more right to speak than you who got one via a free blogging account.
Sour grapes.
Re:What's so special about that press card? (Score:5, Insightful)
Re:What's so special about that press card? (Score:5, Insightful)
Apologies for this US-centric post, but I don't remember "reporter" being on the last ballot I cast. I also don't recall reading that Thoman Paine needed a press pass for his "Common Sense" articles.
I've read the Constitution, and I don't remember anything in the 1st amendment regarding press passes, or government powers to issue them. That document doesn't grant rights to citizens; it specifically states that you already have all rights. What it does is grant power to government, and limited power at that,
Sadly, opinions like yours have allowed government to gain far greater powers than granted by the Constitution.
-mcgrew [kuro5hin.org]
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It gets a little more complicated with government agencies - especially those that deal with crime, but I think their general policies are 'Large Local organizations first'. I
Re:What's so special about that press card? (Score:5, Interesting)
If I'd written all the truth I knew for the past ten years, about 600 people - including me - would be rotting in prison cells from Rio to Seattle today. Absolute truth is a very rare and dangerous commodity in the context of professional journalism.
- Hunter S. Thompson
WWHSTD? (Score:5, Informative)
When I worked in the computer graphics industry I used to get comped passes to all the big graphics shows - siggraph, ncga etc. One year they didn't arrive in time so I called up and asked how i get a press pass. They said "bring a letter from your editor".
Now, this was at a time when very few people had laser printers.
So I printed up a letter on "Thompson/Hunter Communications" lettterhead explaining I was a reporter for "bitter reality" magazine.
They took it, hook, line and sinker.
"Bitter reality? I've never seen that"
"It's a Canadian magazine, notice the Toronto address"
"ah yeah, right"
"So is this the weirdest magazine you have here today".
"no. cruise line cuisine is".
I wanna know which of you pricks pulled THAT stunt. I mean come on...
At any rate not only did I get in free, I got access to the press room with free food and drink bit also get $1400 worth of conference preceedings and every book they had without even asking. I had to borrow a hand cart to get them into the trusty Subaru.
Yeah. I love press passes. Hunter was onto a good thing there. And is of course where I got the idea.
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Re:I just wish (Score:4, Insightful)
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If a blogger wants to call themself a journalist, they'll have to earn it - just like someone working for a print publication.
It's interesting to listen to your statement about journalists, but it just describes how you define a journalist.
I don't know the legal situation in the U.S. that much, but at least in Germany journalist is not a protected profession. Everyone and his dog has the right to call themselves "journalist". If you write for a respected magazine or for the unregurarily edited paper of the local sunflower growers association, doesn't matter. You don't even need to have published anything and are still allowed to call yourself a journalist.
Press Pass != Rights (Score:4, Informative)
You can't grant someone rights. They either have them or they don't.
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Re:Press Pass != Rights (Score:4, Informative)
Didn't a New York Times reporter just go to jail for not naming a source? I think you're mistaken. Granted, she just wanted a book out of the deal...
Press passes are issued by some organization and only give the wearer privileges with regards to that organization. If you get an event press pass, you're treated as press for that event. If the police give you a press pass, you can cross police lines. Neither an event organizer or the police are required to give a pass to anyone. If a newspaper gives you a press pass, no one is under any obligation to honor it, it only carries the weight of the reputation of the entity who printed it. Same with professional press organizations.
Regardless, you can't give yourself a press pass (or at least one anyone will respect), someone has to recognize you as Press. Which means "editorial" style bloggers will probably not earn the privilege but ones that do actual journalism have a chance. And that's what it is, a privilege, that can be taken away. A right can't be taken away (except through criminal proceedings), nor bestowed by a piece of paper.
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Right! (Score:2)
Re:Right! (Score:4, Funny)
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I'll go one further .... (Score:3, Insightful)
I'd actually go further
I trust the mor
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That would certainly affect how credible I believe the person in question is, but I don't think that the laws/courts should really be taking into consideration whether a person is a profession
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The difference is, when they get caught fabricating stories, they tend to get fired and have a hard time finding another job in their field. What happens to the amateur who gets caught fabricating a story?
That's not to say that pro journalism is pure as Ivory Snow. There are plenty of pro journalists who are incompetent/sloppy/uncaring, who fail to check their facts
Re:I just wish (Score:5, Informative)
Re:I just wish (Score:5, Interesting)
Three words: Free Speech Zones.
Compare and discuss amongst yourselves. Is it constitutional to say that you can express dissent locked up inside of this fence after we've already corralled and ID'd you, or do you have the right to free speech everywhere. Don't taze me bro!!
Two more words: Habeus Corpus.
Is it constitutional for the government to suspend Habeus Corpus of citizens and non-citizens alike as they see fit? Bonus points if you can identify the part of the constitution which expressly forbids this.
Three more words: Warrantless Wire Tapping.
Surely, it can't be constitutional to eavesdrop on everyone in case you might be able to find something, right? Because, you're supposed to be secure in your person and papers from unreasonable search and seizure, right?
The current administration, with the help of their crack (head) legal minds, have allowed all sorts of things to happen which are blatantly unconstitutional. Singling out this one aspect (while, theoretically valid) is, in practice, pointless.
If they can get an AG to issue a legal opinion, claim executive privilege to prevent any form of legal action, as well as refusing to answer questions to congress
Let us hope that remains true. Because, the government has already taken away rights. And, they continue to do so. As has been stated here on Slashdot so often, "National Security" and "Protecting Children" are the secret codes to unlock the constitution.
Cheers
Re:I just wish (Score:4, Insightful)
Morally, you're correct. In practice, the people with the laws and the guns can trample them fairly easily. And, they're doing it.
Oh, I understand that, in the abstract, a right should be recognized as something which is inalienable and not something which is granted or revoked. In practice, I believe there are a lot of situations in which the theoretically immutable right can be stripped away by someone who doesn't care.
See, as much as I believe that (ideally) what you say should be true, there's that little practical measure by which the rights of some people are being taken away (or trampled on, or ignored, or infringed, or abrigated, or what have you) -- that is happening now.
Infringe upon them long enough, pass laws saying they were never there in the first place, and get your AG and justice department to erode them long enough, and they're eventually gone. Failure to fight for your rights can, in fact, mean that they get taken away from you by someone who isn't quite so concerned with the niceties as you.
People who rule by force don't give a flying fsck about your theoretical rights. They just do it how they want to. When the man with a gun doesn't agree with your assertion that you have a right to do something, he's not going to get the finer points of your argument. Once people decide your 'quaint' notion of inherent rights is something they don't want to listen to any more
Failure to prevent it happening now means in a few generations, asserting you ever had these rights will be a matter of historical curiousity -- and, of no immediate practical benefit. At present, the current administration is trying very hard to undermine both the constitution and your rights
Cheers
Bullshit. (Score:5, Interesting)
Okay, go to a local newsstand. Pick up a paper, pay the $.50, and open up to the editorial page.
What's the difference between that editorial page and a blog? The format. So saying that "blogging is commentary ... but not reporting in the journalism sense" is bullshit.
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I personally do news photography and videography. I get crap from "professionals" all th
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Good. It should scare the professionals ... it should scare them to a higher standard. I
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It's still bullshit. Commentary is commentary -- so why should the people who write for a newspaper get special protection that people who write for a blog don't?
No it didn't. I cut out "and/or editorializing." That wasn't a "meaning of" anyt
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Check out Daily Kos (Score:5, Interesting)
Oops. As Markos points out, the critic didn't even bother to click the 'About' button where he would learn that he has an undergraduate degree in journalism, has actually worked as a paid journalist, and oh yeah also has a law degree. He isn't some guy ranting from his mother's basement.
I've seen this pattern countless times. Someone says a "blogger" isn't qualified, yet even a casual examination shows that the blogger is not only highly qualified, they're often more qualified than their would-be critic.
Does this mean that this is true of all bloggers? Of course not. But at this point I think we've clearly crossed the "better to let 20 murderers walk than hang one innocent man" threshold and bloggers should be treated with respect and as bona fide journalists unless they demonstrate otherwise.
Unrelated note: you do realize, don't you, that Fox News has successfully argued in court that it should not be held accountable for factual errors in its reports because it presents 'opinion and commentary', not 'news', programming? Why are they entitled to 'journalist' protection while people with appropriate experience and/or advanced degrees are held up for ridicule?
Re:Check out Daily Kos (Score:4, Informative)
Not just factual errors, but known factual errors (the rest of us call them lies). They were given a statement, they checked and found the statement to be false. They used the statement anyway because it sounded better than the truth. They knowingly spread information they believed to be false.
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If you are, in fact undecided on this issue and would like more information,
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I wouldn't bother apologizing.
Reference (Score:3, Informative)
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Absolutely. And since I wouldn't piss on a J-school graduate if he was on fire, much less treat him with respect, I guess that's how I'll treat bloggers as well. As for the government, "journalists" should have no fewer rights than I do, but certainly no more.
Somewhere along the
Informed electorate (Score:2)
Still don't think it's that important? Look at its peers: freedom of speech (and more importantly, the freedom to openly
Rights? (Score:2)
What legal rights does owning a press card give you? Probably about the same rights as a Boy Scout card or a Student ID.
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99% of being "press" is looking and acting like you belong there. the rest is talking your way into getting the pass.
Hell I did it so good last year, I was asked before I left the event that if I could be paid to be their official ph
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Hold on there! What constitutes a journalist and who gets to determine this criteria?
When the bill of rights was written to give the freedom of the press, a journalist was any Joe Sixpack who could read and write and had access to a printing press which were often more slanderous and opinionated than today's blogs. Many of the colonialist pamphlets written against the British were high
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Funny, I don't remember seeing anything about "press cards" in the First Amendment.
IANAL, but... (Score:2, Interesting)
IANAL, but isn't there an issue that the plaintiff could raise here? I would think contacting a third party & requesting them to issue derogat
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Mr. Campbell: I am an attorney in Greenville, SC. I represent a client that has filed a federal lawsuit against one Philip Smith (a.k.a. Jackwhispers) for trademark infringement. I have learned that Mr. Smith has attacked/libeled/slandered a number of other folks in his blog, you included. I was wondering if you would mind giving me some idea of your history with this individual, what kinds of contacts you have had with him, wh
Does this work in reverse? (Score:5, Interesting)
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The quote says that text is possibly protected, regardless of format. While I approve wholeheartedly of that notion, it also implies that for any text to be considered protected as journalism, it needs to meet an nebulously-defined standard of "content and intention." I also happen to agree with that as well but I can see how others might not share that opinion. Most bloggers,
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While appealing, I think there's actually more to it than that. Off the top of my head, I'd add responsibility to the list.
Publishing information which has no particular value and puts someone's safety at risk - even though it may be factually correct - is irresponsible and not an example of protected journalism. By your own, sole standard of "factually correct", a simple list of names and their SSNs would qualify as journalism and therefore deserve protectio
Now if he could get paid for the inconvenience ... (Score:4, Interesting)
Re:Now if he could get paid for the inconvenience (Score:2, Informative)
http://dockets.justia.com/docket/court-scdce/case_no-6:2006cv00109/case_id-138245/ [justia.com]
A lien for what? (Score:2)
Philip Smith was able to obtain a special sanction after the Plaintiff attorney put a 'notice of lien' (called lis pendens) on Smith's residence.
Slander of title?
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Basically, just bullying him. I think the best way to get justice here would be for people to google-bomb the words, "ebay holding company" and also the name of this company so that searches point to this guy's blog.
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Actually, the unit of currency in Brazil is not the dollar but the "real". Oh, wait...
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Probably would work. Usually you can't sue for slander of title over a lis pendens, but since there was no actual basis whatsoever for the lis pendens litigation immunity probably wouldn't apply. Might also be a basis for malicious prosecution and/or abuse of process.
Why the third person? (Score:5, Interesting)
Hey buddy, I'm really glad you (rightfully) won your court case and all against those jerks, but why post it to Slashdot with a sentence like that? The use of the word "seems" implies to me that you're trying to pretend you're not Phillip Smith.
Aren't you, in fact, the defendant in this case? Submitting stuff and pretending you're not the owner of the blog you're linking to, and implying you're not the fellow referenced in the case, is just a little lame IMHO.
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Yes, Slashdot editors have lost my belief in their credibility...
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Huh, guess he does qualify as a journalist.
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In case you've never submitted a story before, y
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Not Censorship. (Score:4, Informative)
This was first of all a civil case. You can sue anyone for anything.
So here is what happened.
"BidZirk struck back with a lawsuit claiming defamation, privacy invasion and trademark violations. After losing its request for a preliminary injunction, BidZirk appealed to the Fourth Circuit, which denied its request. Very messy discovery followed, with both parties getting chastised for their conduct*. Finally, in this ruling, the court granted Smith summary judgment, and threw in some sanctions against plaintiffs' counsel to boot."
Somebody didn't like a company and posted a nasty opinion of them. They got their lawyer to sue. The case went to court and was tossed out.
In other words a great example of the system working.
It sounds as if BidZirk's lawyers so messed up this case that the plaintiff might even have a shot act getting his legal fees.
Did the system work? (Score:3, Interesting)
What about the chilling effect that this bogus litigation has on other bloggers?
IMO: the system working is debatable.
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If you make false statements about some one that ruins there business they can sue you. So if you open up a store and someone makes false statments you have legal recourse. You take them to court.
I would love to see someone take Microsoft to court over the Linux infringes on Microsoft Patents they are making.
Frankly this was nothing but wine feast. Had they not taken this guy to court then no one would care about it. Frankly no one should care a
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Government can censor, but they are not the only ones.
and this: "Censorship tends to a criminal action." makes no damn sense what so ever.
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There was one claim of trademark infringement. The court tossed it out. There was a claim of violation of privacy. The court through that it. There was a claim of making fast statements. That was tossed out of court. At no time where any freedom of speech issues at stake here. It was a pissing match between two idiots that made it to cou
Who said censorship? I asked if the system works (Score:2)
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This is America, where a company can legally bribe "your" representatives before they are elected, by "contributing" to both major party candidates. When Sony gives ten million to the Republican and another ten million to the Democrat, no matter who loses, Sony wins. And Sony gets whatever laws it wants passed, and whatever laws it doesn't like repealed (unless some other company has made a bigger pre-election bribe the other way).
So when a c
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The the entire legal system is censorship.
Frankly I think the people on Slashdot need to get past the view that all "censorship" is bad. How many people on Slashdot will rant about how censorship is evil but will moderate an opinion that they don't agree with?
But no this wasn't censorship. How? At no time was the post removed by force of law.
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when will companies understand? (Score:3, Insightful)
companies want to send a message, and it works (Score:2)
For example, you know a utility company is doing something illegal. You put it in your blog. The utility company files a lawsuit against you. You fight the lawsuit, but go broke in the process, so the suit is never settled. This will send the message to other would-be bloggers: "don't screw with the utility company."
It is no problem for the utility company to drop $250K on a lawsuit. Can you say the same?
Here is the case file online (Score:5, Informative)
It is also available on PACER, which may be more complete, but there is a per-page access fee involved.
Go to the bottom for the Order Granting Summary Judgment.
Herlong is an excellent judge, I'm had a few cases in front of him. Good for the blogger. I hate other attorneys who treat opposing parties like this. It gives us all an even worse name.
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PACER is free if you don't rack up more than $10 a year with it. Of course it's VERY easy to do that -- even searches incur a per-"page" charge for the results. It's also a public record, so anyone's perfectly free to grab documents off PACER and republish them publicly.
Familiarity . . . (Score:3, Funny)
letter on his website (Score:2)
Journalists (Score:3, Informative)
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Consider this: If a journalist from a "real" newspaper decided to do reporting for a "blog", would that somehow lower the quality of the work he's doing -- even if he writes in the same manner as he did for the "real" publication?
Dead trees do not a worthy statement make.